PILKVIST & COBURN (DECEASED) - [2020] FamCAFC 204

FAMILY COURT OF AUSTRALIA

PILKVIST & COBURN (DECEASED)

[2020] FamCAFC 204

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIPS – Challenge to the primary judge’s declaration that a de facto relationship never existed between the appellant and the deceased – Where the appellant contends that the primary judge demonstrated bias – Where the primary judge was not biased – Adequate reasons for judgment – Weight challenges – Where the primary judge’s findings were open on the evidence – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where some of the evidence sought to be adduced is not admissible – Where the evidence sought to be adduced is of limited weight – Where the evidence sought to be adduced would not produce a different result if it was taken into account – Application dismissed.

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM, 117(2A)

Succession Act 1981 (Qld)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Cuan & Kostelac (2017) FLC 93-801; [2017] FamCAFC 188
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Ms Pilkvist

RESPONDENTS:

Mr Coburn (Deceased) by his legal personal representatives Ms Coburn and Mr E

FILE NUMBER:

BRC

2525

2009

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

19 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane (via videolink)

JUDGMENT OF:

Aldridge, Austin & Tree JJ

HEARING DATE:

27 July 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 September 2019

LOWER COURT MNC:

[2019] FamCA 635

REPRESENTATION

THE APPELLANT:

Self-represented

COUNSEL FOR THE RESPONDENTS:

Mr Galloway

SOLICITOR FOR THE RESPONDENTS:

Peter J Sheehy Solicitor

Orders

The Application in an Appeal filed on 10 January 2020 be dismissed.
The appeal be dismissed.
There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pilkvist & Coburn (Deceased) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 88 of 2019

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read PILKVIST & COBURN (DECEASED) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FamCAFC 204
Decision Date: 19 August 2020

CaseChat Overview and Summary

In the case of Pilkvist & Coburn (Deceased), the appellant sought to challenge a primary judge’s declaration that a de facto relationship never existed between herself and the deceased. The dispute was heard and determined in the Family Court of Australia. The appellant argued that the primary judge had demonstrated bias and that the findings made were not supported by the evidence. The appeal also included an application to adduce further evidence that had not been presented at the original hearing.

The legal issues before the court included whether the primary judge had demonstrated bias and whether the primary judge's findings were adequately supported by the evidence. The court examined the reasons provided by the primary judge and determined that there was no evidence of bias and that the findings were open on the evidence presented. The court also considered the application to adduce further evidence, finding that some of the evidence sought to be presented was inadmissible and that the evidence, even if admitted, would not have produced a different result.

The court dismissed the appeal and the application to adduce further evidence. It found that the primary judge had provided adequate reasons for the judgment and that the findings were open on the evidence. The court also found that the evidence sought to be adduced was either inadmissible or of limited weight and would not have produced a different result if it had been taken into account. The appeal and the application were dismissed, and there was no order as to costs.

Orders

Orders of the court

The Application in an Appeal filed on 10 January 2020 be dismissed.

The appeal be dismissed.

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.